ICANN Jurisdiction Working Group Reaches Critical Juncture

ICANN is a California nonprofit headquartered in the United States. ICANN’s accountability reforms included a discussion of how U.S. jurisdiction affects ICANN’s accountability and domain name users. Not satisfied with ending U.S. control over the DNS root, a few stakeholders wanted to get ICANN out of the U.S. altogether. It is now pretty clear that there is no viable or superior alternative to U.S. jurisdiction. But there are some problems and issues associated with U.S. jurisdiction that ICANN needs to address.

In the last few months, the Workstream 2 Jurisdiction subgroup circulated a questionnaire about how ICANN jurisdiction affects Domain Name System customers and users. It called for identifying problems associated with U.S. jurisdiction. The group has finished analyzing the responses to the questionnaire. During this process, IGP put forward some  issues that demonstrated how ICANN jurisdiction can hamper access to DNS. In this blog post we provide a more general overview of those problems and explain how they can be solved without changing ICANN’s basis in California law. The key jurisdiction issues stem from U.S. sanctions and ICANN’s ccTLD delegation process.

US Sanctions Laws and Policies

Most people would agree that the Internet should be administered as a neutral global resource and not exploited to advance any one government’s policies and interests. Yet, as part of its foreign policy, the U.S. imposes sanctions on other countries. These laws and policies, when applied to domain name registrars and registries, can hamper access to the domain name system by innocent users and businesses. The U.S. Office of Foreign Assets Control, which enforces the sanction laws and policies, maintains a list of specially designated nationals that US persons cannot transact with. However, in many cases without a general license even those not listed cannot freely transact with U.S. persons. They need to apply for an OFAC license. Applying for an OFAC license is a lengthy process and ICANN does not even commit itself  to apply for an OFAC license for the registrars. As to the registries, ICANN suggests that it will apply for a license but it will not guarantee that the license will be granted.[1]

In the U.S., laws such as Trading with the Enemy Act 1914 and more specific regulations such as Cuban Assets Control Regulation[2] and Iranian Sanctions and Transaction Regulation are in place and govern many aspects of transactions between these countries and the U.S.[3] U.S. can also enforce its sanction policies through issuing executive orders. Executive orders that prohibit U.S persons to transact with residents of a certain country or region can certainly affect DNS customers. For example, if financial  sanctions are issued against a country through an executive order and transactions are blocked, ICANN will not be able to do business with entities that reside in those countries. There are no general licenses issued that can be applied to ICANN’s functions.

Since U.S. policies can be enforced through executive orders, it can create uncertainty especially with the changes in the Presidency. Access to domain names and providing domain name services should not be hampered by the change of political administration in the U.S., where ICANN is located.

ccTLD Delegations

ICANN delegates the country code top level domain names (ccTLDs) in accordance to its policies. Since it does not in most cases have a formal agreement with ccTLDs managers and operators, it seems that so far it has not been obliged to consider US sanctions laws in its decision for delegation and redelegation of ccTLDs. However, the case of Weinstein v. Islamic Republic of Iran, which sought to seize the .IR top level domain and some other ccTLDs to compensate terrorist victims, raised questions about ICANN’s jurisdiction and its effect on the ccTLD delegation decisions. It is very important that ICANN’s decision regarding the ccTLD delegation  remain unchallenged under U.S. laws, since delegation decisions have a global effect and ICANN needs to be accountable to a global community and not just the U.S. government. Some governments around the world believe that they have sovereignty over the delegation of the national ccTLDs (which we do not agree with) and consider the application of US laws to the delegation of a ccTLD as interfering with the sovereign power of another nation. The U.S. Court decision in Weinstein respected the global mission of ICANN and elevated ICANN’s delegation decision above everything else. However, we are not sure how binding or precedential the appeals court decision will prove to be. Therefore, we think this issue should be analyzed further to understand whether the outcome of the court will prevent future challenges to ICANN decisions on delegation and redelegation of ccTLDs. If it does not, then other measures are needed to uphold ICANN ccTLD delegation and redelegation decisions.

What Is Next

In ICANN’s Jurisdiction Subgroup, IGP is going to be advocating for recognition of these issues  as problems that need to be addressed. The subgroup mandate  is to discuss how the applicable law can affect ICANN’s accountability with regards to contracts and dispute resolution. Because of the global mission of ICANN and its accountability to a global community, we believe the applicable law under the two abovementioned  circumstances can affect ICANN’s accountability to the global multistakeholder community and, therefore, we need to find solutions. These solutions do not require uprooting ICANN and moving it to another state – all states have foreign policies and may impose sanctions. These problems can be solved within U.S. framework by, for example, providing a general OFAC license for DNS services and by recognizing the precedent of the appeals court decision.

 

 

 

[1] For a full explanation of the issues see http://www.internetgovernance.org/2017/01/13/icanns-jurisdiction-sanctions-and-domain-names/

[2] Note that many aspects of sanctions on Cuba has been levied by the United States recently.

[3] For a comprehensive list of Code of Federal Regulations on various sanction regulations on different countries refer to: https://www.treasury.gov/resource-center/sanctions/Pages/CFR-links.aspx


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